HO CHUNG WAI v. LA'CINE COSMETIC WORKS LTD

HCPI 308/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 308 OF 2007

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Dates of Hearing: 22-23 May and 17-18 July 2008

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J U D G M E N T

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Introduction

1. The plaintiff’s claim against the defendant is for damages for personal injuries sustained by him on 20 April 2004.

2. The plaintiff was 39 years old at the time of the accident.  At the material time the plaintiff was employed as a stock keeper by Chung Ching Dispensary Ltd (“Chung Ching”) at its warehouse premises on the ground floor of Chung Ching Building at 50-52 Tai Po Road, Kowloon.  There was a slope inside the warehouse premises on the ground floor leading up to the rear entrance of the warehouse (“the slope”).  When the plaintiff was inside the warehouse premises on 20 April 2004 and performing his duties in the course of his employment with Chung Ching he was hit by a metal trolley stacked with cartons of goods and some of the cartons also fell on him.

3. It is the plaintiff’s case that at the material time one of the defendant’s workers was pulling the trolley stacked with cartons of goods up the slope whilst another of the defendant’s workers was pushing it up the slope when the trolley moved backwards down the slope and hit the plaintiff and some cartons also fell on him.  As a result of this the plaintiff sustained personal injuries in his right knee and right leg. 

4. The defendant disputes that its workers were transporting goods inside Chung Ching’s warehouse at any time on 20 April 2004.  The defendant’s case is that it is not liable to the plaintiff for the injuries sustained by him.

5. The issue of liability was ordered to be tried separately from the issue of quantum by an order of Master B Kwan made on 23 August 2007.

6. This is the trial on the issue of liability.

The applicable principles

7. It is for the plaintiff to satisfy the court on a balance of probabilities that the defendant’s workers caused the injuries to the plaintiff.

8. It seems to me that what I said in Wat Kwing Lok v Kowloon Motor Bus (1933) Ltd [2008] 1 HKC 168 at paragraphs 16 and 17 is also applicable as follows:

“ 16.       It is also common ground that the principle set out in the judgment of Megaw LJ in Ward v Tesco Stores Ltd [1976] 1 WLR 810 at 815 was applicable, namely:

  ‘It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault.’

17.       The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant.  The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault.  If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.”

The main issue

9. Although contributory negligence has also been pleaded in the defence this was not seriously pursued.

10. Mr Wong, for the defendant, submitted in his closing submissions that the issue before the court was a narrow one namely, whether the defendant’s workers were at the warehouse premises of Chung Ching at the date of the accident.

11. The main issue is whether the defendant’s workers were at the premises of Chung Ching at the date of the accident on 20 April 2004.  This is a question of fact.

The witnesses

12. I heard evidence from the plaintiff and also from Hui Yin Wai (“Hui”) of the defendant.  There is a direct conflict between the evidence of the witnesses as to whether the defendant’s workers were at the premises of Chung Ching on 20 April 2004.  On this issue I much prefer the evidence of the plaintiff, whom I believe, to the evidence of Hui, whom I disbelieve.  I find that the plaintiff was an honest, credible and reliable witness who told me the truth.  I find that Hui was neither a credible nor a reliable witness.  I find that he did not tell me the truth about the events on 20 April 2004.

Undisputed facts

13. At all material times the defendant was one of Chung Ching’s suppliers of different types of goods including Lan Ju Mosquito Coils (“the mosquito coils”).  Chung Ching was a large wholesaler and retailer and was one of the major customers of the defendant.  The defendant was the sole distributor of the mosquito coils in Hong Kong.

14. The mosquito coils delivered by the defendant to Chung Ching were contained in boxes.  As set out in the defendant’s answer to interrogatories affirmed by Hui on 16 November 2007 and as amended when Hui gave evidence, each box containing mosquito coils had dimensions of 12 cm (4.81 inches) in length x 12 cm (4.81 inches) in width x 2.8 cm (1.06 inches) in height with a gross weight of 187 grams.  The boxes were placed in cartons.  Each carton contained 60 boxes.  The dimensions of each carton were 39 cm (15.25 inches) in length x 26 cm (10.25 inches) in width x 30 cm (12 inches) in height.  Its gross weight was 10 kilograms (22 lbs).

15. Apart from the warehouse on the ground floor of Chung Ching Building there was also the sales department also on the ground floor.  There were also the mezzanine and the 1^st floor which were also part of the warehouse facilities of Chung Ching.  As shown in the plan of the ground floor at page 57 of the trial bundle (“the plan”) there were 2 goods lifts inside the warehouse area on the ground floor which serviced the mezzanine and the 1^st floor as explained by the plaintiff.  The area coloured yellow on the plan was the warehouse area on the ground floor.  The area coloured red was the area of the sales department.  The area coloured orange was the slope.

16. The plaintiff had been employed by Chung Ching as a stock keeper for about 4 years prior to the accident.  He worked inside the warehouse on the ground floor.

17. The plaintiff gave evidence that as a stock keeper his main duty was to check and receive for Chung Ching goods supplied by its suppliers which were to be sold at its sales department and wholesale department.  He was usually required to walk inside the warehouse for checking stock or moving and lifting goods pending exchange inside the warehouse.  He was also provided by Chung Ching with a hard cover notebook for the purpose of recording information of goods supplied by suppliers of Chung Ching.  He would check and count in accordance with suppliers’ invoices the goods delivered and record the information in the notebook and then chop with Chung Ching’s chop on the suppliers’ invoices and acknowledge receipt of goods.

18. The above facts are undisputed and I find them proved.

The evidence and findings

19. The plaintiff said that on 20 April 2004 he went to work at 9 am as usual.  He was informed by his superior Lee Ping Hung (“Lee”) that as new requirements on labels for pesticides had been prescribed the defendant would arrange delivery workers to attend the warehouse of Chung Ching to exchange the mosquito coils with old labels for the mosquito coils with new labels later on the same day.  He was told to inform Lee when the defendant’s workers arrived at the premises.

20. The plaintiff further said that at about 11 am on that day 20 April 2004 two delivery workers of the defendant arrived at the warehouse.  One of them showed him a document issued by the defendant to Chung Ching for exchange of goods.  He then led them to Lee who was at his desk as shown in the plan.  After Lee looked at the document he instructed the plaintiff to ask his colleagues to deliver the cartons of mosquito coils with old labels stored at the 1st floor to the warehouse on the ground floor through the internal goods lifts.  The plaintiff did as he was told.

21. The cartons of mosquito coils with old labels were delivered to the ground floor and placed on the vacant area opposite the goods lifts.

22. The plaintiff said that he did not remember the exact quantities of goods stated in the document which were to be exchanged that day but he believed that it should have been several ten cartons at least.

23. After counting and confirming the quantity of the goods that were delivered to the ground floor from the 1st floor, the goods were taken out of the warehouse by the delivery workers of the defendant.  The plaintiff said that each time about 10 cartons containing the mosquito coils were loaded onto a metal trolley of the type shown at page 59 of the trial bundle.  The plaintiff said that the trolley that was used by the defendant was not one of Chung Ching’s trolleys but was the defendant’s trolley.

24. The plaintiff described the manner in which the trolley stacked with cartons were taken out of the warehouse by the defendant’s workers.  He said that one of the defendant’s workers was pulling the handle of the trolley backwards and upwards up the slope leading to the rear entrance of the warehouse.  The other worker was at the other end of the trolley pushing the trolley and the cartons stacked thereon up the slope.

25. The trolley with the cartons were taken to the defendant’s goods vehicle and the workers came back with the same quantity of cartons containing mosquito coils with new labels.  The plaintiff confirmed that the defendant’s workers loaded one trolley with cartons, took it to the vehicle and came back with a trolley of new mosquito coils of the same quantity of cartons. 

26. The plaintiff recalled that just before the accident the trolley stacked with cartons was being moved up the slope.  He was inside the warehouse checking other goods there and standing at the place marked with an asterisk on the plan with his back towards the rear entrance.  He suddenly heard someone shout very loudly to watch out for the trolley.  He turned around and started to run but he was unable to avoid the trolley which hit him and some of the cartons fell on him.

27. The plaintiff also said in evidence that one of the defendant’s workers with whom he had had frequent dealings in the past went up to him to help remove the cartons on him as well as massaged his leg with some medicated ointment and apologized to him.  The plaintiff said that there were the Chinese characters of Lan Ju Mosquito Incense as well as a logo on the outside of the cartons which fell on him when the trolley hit him.

28. He also said that after the accident he returned to his post and continued with some clerical work.  He left work early at 4 pm instead of 7 pm because he could not bear the pain.  He did not seek medical treatment that day because he had applied medicated ointment which alleviated his pain.  However the injured area was stiff and swollen on the following day and he attended Kwong Wah Hospital for treatment.

29. Mr Wong, for the defendant, submitted that the plaintiff’s case was incredible and the plaintiff should not be believed.  I am unable to accept Mr Wong’s submissions.  I believe the plaintiff and accept his evidence.  I find the above facts as set out at paragraphs 19 to 28 proved.

30. It was submitted that the plaintiff was not even sure about the time of the accident.  The plaintiff’s pleaded case until the amendment which was made on the first day of trial was that the accident happened at about 4 pm instead of about 11 am.  However, the plaintiff explained that it was a mistake which he only discovered the day before the trial and he did not know why 4 pm had been pleaded in the first place.  I believe him.  Although in his application for employees’ compensation dated 28 February 2006 4 pm was also pleaded as being the time of the accident, it seems to me that must have been, as the plaintiff said, a mistake.  I would observe that in the Form 2 dated 10 May 2004 given by Chung Ching as the plaintiff’s employer to the Commissioner of Labour, it was clearly stated that the accident occurred at about 11 am.  I am satisfied that the original plea of 4 pm in the pleading was a mistake as the plaintiff said.

31. Mr Wong also pointed out that the plaintiff raised important facts for the first time during cross-examination and submitted that the plaintiff tailored his case as he went along.  

32. It was pointed out that in the plaintiff’s witness statement the only mention of Hui Ming Kai of the defendant was in the context of Hui Ming Kai instructing the plaintiff after the accident not to check the goods or lift goods temporarily but to sit down and to deal with paper work at his desk.  In cross-examination the plaintiff was probed by Mr Wong as to whether he told Hui Ming Kai what had happened and he said that he did but that Hui Ming Kai probably saw it because there were still some cartons on the floor.  He also said that there was no need for him to tell Hui Ming Kai anything as the staff of the defendant had told him what had happened.  He said that he did not have much impression of what was said as he only heard a part of it.  What he heard was that while the trolley was being pulled up possibly due to a slip of hand the trolley slid backwards.  Hui Ming Kai also said to him that his leg was not made of glass and asked him to take a rest and that it would be okay.  He was also asked whether when Hui Ming Kai came over to him the medicated ointment was being applied and he said that it was.

33. The plaintiff also said in evidence that while he was counting the goods one of the defendant’s workers was assisting him.  He was asked to describe him and he was able to do so.  He described that worker as middle-aged, slightly bald with a receding hairline and someone who spoke Cantonese with some accent.  He was someone with whom the plaintiff had dealt on previous occasions and he was able to recognize him.  It is accepted that this matched the description of Cheng Yiu Kai (“Cheng”) of the defendant.  Cheng was not present in court on the first day of trial but was in court on the second day of trial and was identified by the plaintiff.  The plaintiff also said in evidence that he was able to recognize Cheng but not the other one as due to the lapse of time his memory of the other worker had faded.  Also, the other worker was someone that he did not have much contact with whereas Cheng was the one with whom he had had frequent dealings.  I believe him.  The plaintiff did, however, say that if he came across that other worker he thought that he would still be able to recognize him.  Hui was in court at that time but the plaintiff was unable to recognize him as the other worker.  I am satisfied that the plaintiff was unable to recognize Hui as his memory of the other worker had faded with time and although he thought that he would be able to recognize him the fact is that he could not.  In my view his credibility and reliability has not been undermined.

34. The point was also made that in his witness statement the plaintiff said that the two delivery workers said sorry to him after the accident whereas in cross-examination he said that it was one of the workers who did so.  It was Cheng who massaged his leg with medicated ointment and apologized to him.  I believe him and accept his evidence.  In my view this was a minor discrepancy which did not undermine the plaintiff’s credibility and reliability.

35. Mr Wong also submitted that the plaintiff gave inconsistent evidence about the number of trips that the defendant’s workers had taken from and to the warehouse with the trolley stacked with cartons containing boxes of the mosquito coils prior to the accident.  In chief he said that there were already quite a number of times and it seemed that there were two times right before the accident.  However, I would observe that he also said that his memory of the number of times the goods were moved in the way as he described prior to the accident was vague because of the lapse of time and he could not recall how many times it was.  In cross-examination he said that just prior to the accident when the trolley left the warehouse he believed that it was the last trip of taking the old mosquito coils away so there should be one more trip for the defendant’s workers to come back into the warehouse with new mosquito coils.  He agreed with Mr Wong that in that case that would have been the fifth or sixth trip up the slope and not just one or two times prior to the accident.  The plaintiff also said that his impression at that time was quite vague.  Although there is a discrepancy in his evidence about the number of times that the defendant’s workers had taken the trolley with cartons up the slope before the accident, I do not regard this as a major discrepancy.  It would not be surprising that his memory of the number of times the trolley stacked with cartons had been taken out and brought back prior to the accident was vague.  He confirmed in re-examination that although his memory of the number of times that the defendant’s workers had pushed the trolley up the slope before the accident was vague, his memory of how the accident happened on 20 April 2004 was not vague.  I believe him and accept his evidence.

36. Mr Wong also made the point that the plaintiff’s employees’ compensation application against Chung Ching as his employer was made on 26 February 2006.  A consent order was made on 10 April 2006 for judgment on the issue of liability.  The question of the assessment of compensation was subsequently settled.  Mr Wong pointed out that there was no mention made by the plaintiff in the employees’ compensation documents that the defendant’s workers were responsible for the accident.  The defendant was also not notified of the accident prior to receiving the plaintiff’s solicitors’ letter dated 26 January 2007. 

37. Mr Wong submitted that upon conclusion of the employees’ compensation proceedings the plaintiff considered bringing the common law action and he then tried to reconstruct the accident and filled in details and mistakenly thought that it was the defendant’s workers that injured him on 20 April 2004.  I reject Mr Wong’s submission.  The employees’ compensation proceedings were about whether the plaintiff was injured in the course of his employment with Chung Ching.  The identity of the tortfeasor was not material to those proceedings and it is not surprising that the defendant as the tortfeasor was not mentioned.  The plaintiff denied the suggestion made to him that he had reconstructed how the accident occurred and filled in the details.  He was adamant that he had given evidence about what had happened on that day 20 April 2004 and that the incident had left a very deep impression in his mind.  I believe him and accept his evidence.

38. I am satisfied, as the plaintiff said, that when he was asked specific questions in cross-examination he was able to recall things which were not mentioned in his witness statement.  When he made his witness statement he was giving the framework of the things that had happened and he did not think that he had to describe things in such detail.  He denied that he was making things up as he went along.  I believe him.  I reject the suggestion that the plaintiff tailored his case as he went along.  I am satisfied that the plaintiff has told me the truth.

39. Hui gave evidence which was undisputed that the defendant is a small family company which is owned by Hui and his wife.  His wife, however, was at the material time resident overseas.  In 2004 only one worker was employed by the defendant and that was Cheng.  The MPF statements of the defendant in the trial bundle confirm that only Hui and Cheng were employees of the defendant in 2004.  I accept Hui’s evidence that in 2004 there was no other employee other than Cheng employed by the defendant.  I also accept his evidence that there was no part-time delivery worker employed by the defendant in 2004.

40. According to the Hui, it was he and Cheng who would deliver goods to the defendant’s customers including Chung Ching.  It was his evidence that when goods were delivered to Chung Ching he would assist Cheng in loading goods to trolleys belonging to Chung Ching and Cheng would alone deliver the goods to Chung Ching.  He knew that there was a slope inside the warehouse of Chung Ching but he denied that he ever assisted Cheng in pushing or pulling the trolley containing cartons of mosquito coils to the warehouse.

41. Hui was adamant that the defendant was not involved in any way in the accident and that the defendant was not responsible for the injuries sustained by the plaintiff. 

42. Hui gave evidence that the defendant did not make any deliveries to Chung Ching on 20 April 2004 and did not exchange mosquito coils with old labels for mosquito coils with new labels for Chung Ching in 2004.  He said that this definitely did not happen because in 2004 there was no need for them to retrieve any mosquito coils from any of its customers.  He said that in March 2004 the defendant received a notice from the Agriculture, Fisheries and Conservation Department (“AFCD”) about discrepancies in the labels and the active ingredients of the mosquito coils.  The defendant was required to do some rectification work by printing new labels and placing the new labels over the old labels on the boxes of the mosquito coils.  That would be sufficient to comply with the notice received in 2004.  He was adamant that the defendant definitely did not attend Chung Ching to exchange the mosquito coils with old labels for mosquito coils with new labels in 2004.  He said such a need arose only in 2005 for a different reason and the first recollection of goods from Chung Ching took place only in November 2005.

43. In cross-examination Hui was asked whether for the purpose of the rectification as a result of the notice received in March 2004 the defendant would retrieve old goods from customers.  He said that there was no need to do so and that would not be done because to put a new label on the box was a very simple procedure but to retrieve goods from a customer was a complicated matter.  He gave evidence that what the defendant did was to have a lot of new labels printed and then the defendant gave those new labels to Chung Ching for Chung Ching’s staff to bring to their retailers.  He explained that Chung Ching’s staff would visit their retailers almost every day because they would have to get orders from them and the retailers would then be able to put the new labels on the old goods.  He stated categorically that in 2004 the defendant never retrieved old goods for the purpose of rectification from any of its customers because there was no need to do that.

44. Hui was then reminded of paragraph 15 ii) of the answer to interrogatories where he affirmed:

“ As to the Goods already delivered to the Defendant’s customers (“the Old Goods”), the Defendant would either give the Labels to its customers to perform the Rectification by the customers themselves or performed the Rectification by Mr. Cheng Yiu Kai for the Defendant’s customers.  In the latter case, the Rectification would be performed at the shop or godown of the Defendant’s customers or if the circumstances did not allow for so doing, the Defendant would retrieve the Old Goods from the Defendant’s customers for Rectification.  The Defendant did not keep any record of Rectification for its customers or retrieving the Old Goods from its customers for Rectification.”

45. Hui tried to explain the discrepancy in his evidence by saying that where there were small shops on the ground floor of a street there would not be place for doing the rectification work at the shop but the goods involved would not be a large quantity only a large carton or 2 cartons.  As it would be inconvenient to do the re-labelling job inside their shop the defendant would simply remove the goods from the shop to the goods vehicle where he and Cheng would place the labels on the boxes and thereafter return the same goods to those clients.

46. He also explained that he had earlier forgotten to mention that apart from giving new labels to his customers he and Cheng had also done the re-labelling for some of his customers.  He went on to say that in fact Cheng had been to Chung Ching’s premises to do the re-labelling. 

47. In my view Hui was evasive and he was changing his evidence as to what the defendant actually did in compliance with the notice from the AFCD.  In evidence he said that new labels were given to customers.  He was then reminded of paragraph 15 ii) of the answer to interrogatories.  He then said that it was only in the case of small shops on the ground floor of a street where it was inconvenient to do the re-labelling that goods were retrieved and re-labelling was done in the vehicle and goods returned after that but these involved small quantities.  He then said that in fact Cheng had been to Chung Ching’s premises to do the re-labelling job which contradicted his earlier evidence that the defendant simply gave new labels to Chung Ching for Chung Ching’s staff to give to their retailers to place the new labels over the old labels.  I do not believe Hui’s evidence on these matters and reject his evidence.  I find that he has not been truthful and he is also not a reliable witness.

48. Hui also relied on 11 invoices all dated 20 April 2004 to show that the defendant was busy delivering goods to those customers all on that day and would not have had time to go to Chung Ching’s warehouse on that day.  Hui gave evidence that the dates on the 11 invoices were the dates on which deliveries were made.  He said that it was always the case that the dates on the invoices were the same dates when delivery was made.  The only exception was when there were adverse weather conditions or traffic problems which prevented all the deliveries being made on the dates of the invoices.  However, that was not what Hui had said in his witness statement.  What he said at paragraph 12 was that in view of the special business relationship the defendant had with Chung Ching the defendant had provided them with the best delivery service.  He went on to say that whenever Chung Ching placed an order for goods, the defendant would issue invoice to Chung Ching soonest possible and the ordered goods would “usually” be delivered to Chung Ching on the date of the invoice. 

49. Hui went on to say at paragraph 13 of his witness statement:

“ According to my recollection, it has never happened that the goods ordered by Chung Ching were delivered by the Defendant more than 3 days after the issue of the invoice.  In the premises, I verily believe that the Defendant did not make any delivery of goods to Chung Ching on 20^th April 2004.”

50. In evidence when cross-examined about what he had said in paragraphs 12 and 13 of his witness statement he said that the words used there were not very clear but what he meant to say was that it was always, rather than usually, the case that delivery to Chung Ching was on the date of the invoice.  I do not believe him.  In my view paragraphs 12 and 13 of his witness statement would not have been written in the manner that it was if Hui meant to say that it was always, rather than usually, the case that deliveries to Chung Ching were made on the date of the invoice, subject of course, as he said, to there being no adverse weather conditions or traffic problems.

51. Hui was able to give detailed evidence of the deliveries that he said were made to the customers on 20 April 2004 under the 11 invoices including the route taken.  On his evidence he and Cheng were busy delivering goods to those customers and he was adamant that the defendant did not go to Chung Ching on that day.  He was also able to give evidence that on that very day he did receive by phone 3 orders in respect of which the defendant made deliveries also on that day.  Although he said that he had made a written record at the time of those 3 orders, the written records were discarded shortly after the deliveries were made on 20 April 2004.

52. Hui also said that until the defendant received the plaintiff’s solicitor’s letter dated 30 January 2007 the defendant was unaware of the accident which the plaintiff says occurred on 20 April 2004.  This was 2 years 9 months after the events of 20 April 2004.  On his evidence that was the first time that he became aware of the accident.  Yet without any written record to refresh his memory Hui was able to give a vivid and detailed account of what had happened on 20 April 2004 including the fact that he had received 3 orders while delivering goods to and from the delivery in the morning to Chun Cheong in Sham Shui Po.  He was also able to remember the times when he arrived at the customers’ places.  He even remembered that at the last stop of his deliveries that day he even joked with the staff of the customer at that last stop.  I would observe that none of this evidence appears in his witness statement.  Although Hui said that 20 April 2004 was a busy day for deliveries, he accepted that it was not the only busy day in 2004.  He said that the only special thing about that day 20 April 2004 was that it was the only day that he was being accused of having done something that he did not do namely, being responsible for the accident to the plaintiff.  He further said that he was able to differentiate that day 20 April 2004 from other busy days because he was being framed and it was alleged that he caused the accident on that day but on other days no such allegation was made against him.

53. According to Hui, nothing special happened to him on that day.  It was a busy day like other busy days in 2004.  According to him, because he was being framed for the accident (which he only became aware of 2 years 9 months after the event) he was able to recollect the events of that day with the vivid details that he has given.  It seems to me that Hui’s explanation for being able to recall the events of 20 April 2004 simply does not make sense.  

54. I do not believe Hui and reject his evidence.  His evidence is neither credible nor reliable.  It seems to me, and I so find, that rather than recalling the events of that day he has reconstructed the events of the day relying on the 11 invoices all dated 20 April 2004.  I would also observe that in the course of his evidence he asked to refer to notes of the route that he took on 20 April 2004 in delivering goods to his customers but as the notes were only made recently I did not allow him to refer to the same.  I do not believe Hui’s evidence that deliveries were made to all those customers on 20 April 2004.  I find that although the defendant usually delivered goods on the dates of the invoices that was not invariably the case as is clear from his witness statement at paragraphs 12 and 13.  It was not always the case that deliveries were made to customers of the defendant on the date of the invoices.  The fact that the defendant can show that the dates of the 2 invoices issued to Chung Ching dated 29 March 2004 and 16 April 2004 respectively, were also the dates of delivery of the goods covered by those invoices does not take the defendant’s case any further.

55. I believe the plaintiff and accept his evidence that he was injured in the manner that he described.  I am satisfied and find that at about 11 am on 20 April 2004 two workers from the defendant went to Chung Ching’s warehouse to exchange mosquito coils with old labels for mosquito coils with new labels.  One of the workers was Cheng.  As the defendant had no other worker in 2004, the other worker must have been Hui.  It is not surprising that the plaintiff was not able to identify Hui in court as the other worker as Cheng was the worker that the plaintiff had frequently dealt with on previous occasions.  After the accident the plaintiff was on sick leave from 21 April 2004 to 31 July 2004 and from 3 August 2004 to 6 December 2006.  He went back to work for only one day after the accident on 2 Aug 2004 but was unable to continue working.  His employment with Chung Ching was terminated on 31 January 2007.  In view of the lapse of time it is not surprising that he was not able to recognize Hui as the other worker.

56. The main issue is resolved in favour of the plaintiff.  I am satisfied that the defendant’s workers were at the premises of Chung Ching at the date of the accident on 20 April 2004.

57. I am satisfied that the plaintiff has proved on a balance of probabilities that there has occurred an event which was unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault.  There can be no doubt that the event where the trolley stacked with cartons which fell backwards down the slope when being pulled and pushed up the slope by the defendant’s workers and hit the plaintiff was an unusual event which, in my judgment, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault.  That being so, the evidential burden shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.  The defendant has failed to show that the accident happened without negligence on its part.  I am satisfied that the defendant was negligent and is liable for the injuries sustained by the plaintiff.

58. As I have said, the plea of contributory negligence was not seriously pursued.  In my judgment there was no contributory negligence on the part of the plaintiff.  As he said, and I so find, he did not see the trolley coming towards him as his back was to the slope at the time.  As soon as he heard someone shout he started to run but it was too late and he was hit.  In the circumstances there can be no contributory negligence on his part and I so find.

Conclusion

59. In my judgment the defendant is 100% liable for the injuries sustained by the plaintiff.

60. I give judgment to the plaintiff against the defendant on the issue of liability for damages to be assessed by a master.

61. I also make an order nisi that:

(1) the costs of the action on the issue of liability be costs to the plaintiff against the defendant; and

(2) the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.